By Dr. Laura Sowden, Partner, Anna Ly, Senior Associate and Aidan Naine, Law Graduate.

Crystalline Silica

Crystalline Silica is a naturally occurring mineral, with very fine particles being dangerous to a person’s health when inhaled into the lungs. The inhalation can lead to silicosis, lung cancer and kidney disease.
Crystalline silica can be found in engineered materials, such as engineered stone used in kitchen benches and counter tops. Silica dust can also be generated through various work activities, including cutting and grinding stone, excavation, mining, construction, tunnelling and grinding.

SafeWork Australia1 provides the following guidance as to crystalline silica in natural rock:

What are the changes?

Currently, there are existing obligations2 for PBCUs in the Federal and State jurisdiction to ensure workers are not exposed to a substance in an airborne concentration that exceeds the workplace exposure standard for the substance. There is also an existing obligation for PCBUs to monitor airborne contaminants to determine whether there is a risk to the health of workers.3 The changes to the WHS Regs creates a level of specificity relating to CSS.
Under the new WHS Regs:

1. Crystalline Silica (reg 259A(3)):
   1. Means crystalline polymorphs of silica; and
   2. Includes the following substances:
      1. Cristobalite;
      2. Quartz;
      3. Tridymite;
      4. Tripoli.
2. Crystalline Silica Substance (CSS) will mean material that contains at least 1% crystalline silica (reg 529A(2)).
3. A person conducting a business or undertaking (PCBU) must control the processing of CSS (reg 529C)
   1. reg 529A(1) contains what processing means under the new regulations including the use of power tools or mechanical plant to carry out an activity involving the crushing, cutting, grinding, trimming, sanding, abrasive polishing or drilling of a CSS.
4. Processing of CSS needs to subject to a risk assessment which determines whether the process is high risk (reg 529CA(2));
5. If determined as high risk, PCBUs must (reg 529CE):
   a. Undertake air monitoring for respirable crystalline silica in accordance with regulation 50;
   b. Provide air monitoring results to the regulator… if the airborne concentration of respirable crystalline silica has exceeded the workplace exposure standardas soon as reasonably practicable (and no more than 14 days from date of result); and c. Provide health monitoring for all relevant, affected workers;
6. There is a duty for the PCBU to train workers on the risks of crystalline silica (reg 529CD).

When will the changes take effect?

The changes to the model WHS Regulations commenced on 1 September 2024.

How will this impact employers, PCBUs, workers etc.

The WHS Regs aims to reducing any potential negative consequences of exposure to crystalline silica such as silicosis, lung cancer and kidney disease. This is done through facilitating stricter regulations on air monitoring of crystalline silica, and accordingly health monitoring of all workers who may be exposed.

For employers and PCBUs, this may look like:

• Reviewing its risk assessments relating to CSS;
• If the processing of CSS is a high risk to undertake air monitoring;
• Training its workers on the risks of crystalline silica.

What does this mean for PCBUs at the state level?

The changes to the Federal WHS Regs do not automatically apply to State jurisdictions until implemented by the State or Territory. New South Wales, Western Australia, Tasmania, South Australia, Queensland and Northern Territory have all adopted the changes by the Model WHS Regs. Victoria is likely to follow, as they have included regulations about crystalline silica since 2021.